An arbitration clause in a prior contract cannot be incorporated into a subsequent, independent agreement unless there is an express reference or clear mutual intention to adopt said clause, as required by statutory principles governing incorporation by reference.

JUDGMENT :

HARISH VAIDYANATHAN SHANKAR, J.

1. The present Petition, filed under Section 9 of the Arbitration and Conciliation Act, 1996, Act, seeks certain ad interim measures against the Respondent. The reliefs sought for, by way of the present Petition, are as follows:

“A. Restrain the Respondent and/or his Representatives, Attorneys, Assignees, etc. from creating, either directly or indirectly, any third party interest in respect of the Ground Floor of the property situate at E-96, Saket, New Delhi;

B. Restrain the Respondent and/or his Representatives, Attorneys, Assignees, etc. from handing over the possession of the Ground Floor of the property situate at E-96, Saket, New Delhi to any third party;

C. In case the property is already rented out, the Respondent be directed to provide the relevant details including the amount already received by him towards the rent so far for the Ground Floor of property bearing No. E-96, Saket, New Delhi;

D. Direct the Respondent to deposit the amount already received as well as the future rent to be received in respect of Ground Floor of property bearing No. E-96, Saket, New Delhi before this Hon'ble Court;

E. Pass ex-parte ad-interim orders in terms of the prayers mentioned above in favour of the petitioner; and

F. Pass such other and further order (s) as may be deemed appropriate by this Hon'ble Court in the interest of justice.”

2. Learned counsel appearing on behalf of the Petitioner, at the outset, submits that the disputes inter se the parties arise out of the Special Power of Attorney dated 09.11.2021SPA executed between the parties in relation to the property bearing No. E-96, Saket, New Delhi. Subject Property

3. Learned counsel submits that the aforesaid SPA governed the rights and obligations of the parties in relation to the first floor of the Subject Property and, inter alia, Clause 11 thereof dealt with the receipt and disbursal of the sale consideration arising therefrom. It is further submitted that Clause 19 of the SPA contains an arbitration agreement between the parties, which reads as under:

“19. In case of any dispute/discrepancies will be sorted out by appointing an arbitrator with mutual consent.”

4. Learned counsel appearing on behalf of the Petitioner submits that disputes have arisen between the parties on account of the alleged non-payment and non-disbursal of the agreed sale consideration receivable by the Petitioner pursuant to the transaction contemplated under the SPA.

5. Learned counsel contends that despite the Petitioner having rights in respect of the first floor of the Subject Property under the Collaboration Agreement dated 20.10.2021CA between the parties, the Respondent proceeded to deal with and sell the same and thereafter failed to honour the financial obligations allegedly owed to the Petitioner.

6. Learned counsel submits that the subsequent Memorandum of Understanding dated 05.03.2024 MoU executed between the parties was merely an arrangement intended to secure and regulate repayment and liability arising from the SPA. It was, in essence, an extension and continuation of the arrangement embodied in the SPA.

7. Learned counsel for the Petitioner, in the backdrop of the foregoing submission, submits that the MoU cannot be treated as extinguishing the arbitration agreement contained in the SPA and therefore the present disputes are arbitrable, warranting interim pr